On November 16, 2018, Secretary of Education Betsy DeVos proposed several changes to Title IX regulations introduced under the Obama administration. The proposal has been open for public comment over a 60-day period that ends on January 30, 2019.
Sanctuary for Families appreciates this opportunity to submit comments to the Department of Education. We thank Gibson Dunn for drafting Sanctuary’s official comments on the notice of proposed rulemaking regarding sexual misconduct in educational programs.
During the past decade, rates of sexual violence have skyrocketed on college campuses across the country. More than one in five women undergraduates experience an attempted or completed sexual assault during college. The epidemic of sexual violence against women on campus led to widespread calls for more robust and fair procedures to govern how schools address complaints of sexual assault and sexual harassment on campus. In 2011, the Department of Education issued guidance, known as the “Dear Colleague Letter,” that required schools to address sexual violence on campus and to implement procedures that would place the complainant and the accused on equal footing in Title IX proceedings. The Dear Colleague Letter, which was implemented by colleges and universities across the country, was widely praised as striking the right balance between protecting the accused and facilitating the reporting and fair evaluation of complaints of sexual assault and sexual harassment on campus.
The Department rescinded the Dear Colleague Letter on September 22, 2017 and announced that it would engage in notice-and-comment rulemaking to draft new Title IX regulations. On November 29, 2018, the Department issued the Proposed Rule, which sets forth an extensive set of restrictions and requirements for schools in responding to complaints of sexual misconduct. The Department says that the Proposed Rule is intended to “promote the purpose of Title IX” by requiring schools to address sexual misconduct and to ensure that investigations of sexual misconduct are “fair and impartial” and that “due process protections are in place for individuals accused of sexual harassment.”
Our Comments on the Proposed Rule
The Proposed Rule is nothing short of a wholesale effort to eviscerate Title IX as a mechanism to address sexual misconduct on campus. The Department’s arguments to the contrary are not credible. The Proposed Rule singles out sexual misconduct—the one type of misconduct on campus that disproportionately impacts females students—and rigs Title IX proceedings in favor of the accused by creating barriers to reporting, limiting what sexual misconduct schools can address, and requiring schools to adopt procedures that put complainants at a significant disadvantage and all but guarantee that the accused prevail. The Proposed Rule would also conflict with and consequently preempt existing state laws that seek to do the opposite: require schools to address sexual misconduct on campus and protect survivors. In short, the Proposed Rule makes survivors of sexual misconduct even more disadvantaged in seeking relief for the harm they have suffered than any other category of complainants in school disciplinary proceedings.
First, the Proposed Rule represents a dramatic departure from prior guidance and existing civil rights laws by limiting the circumstances under which schools may address complaints of sexual misconduct. Under the Proposed Rule, a school may only address sexual misconduct under Title IX if it meets a narrow definition of “sexual harassment,” occurs within defined geographic areas, and is reported to the correct school employee. If all of these conditions are not met, then schools are allowed—and in many cases, required—to ignore the report, no matter how serious the sexual misconduct. By narrowing the definition of “sexual harassment” and limiting the circumstances in which a school may respond to complaints of sexual misconduct pursuant to Title IX, the Proposed Rule enables perpetrators to engage in sexual assault and sexual harassment with impunity.
Second, for the narrow range of sexual misconduct that schools can address, the Proposed Rule mandates that schools implement procedures that favor the accused and that will discourage reporting of sexual misconduct on campus. This is particularly troubling, given that sexual misconduct on campus is already widely under-reported. The Proposed Rule requires survivors to satisfy a heightened evidentiary burden while providing significant advantages to the accused—most notably, a presumption of no misconduct, the ability to subject the complainant to cross-examination by an advisor of his choice, and more expansive appeal rights than those provided to the complainant. Although the Proposed Rule states that such procedures are necessary to ensure that Title IX proceedings are “fair and impartial,” these procedures, in fact, only rig the proceedings in favor of the accused and subject survivors to re-traumatizing investigatory processes and heightened and unnecessary procedural hurdles.
Third, the Proposed Rule would preempt state laws that provide greater protections for survivors. The Proposed Rule’s broad restrictions on the types of sexual misconduct complaints that schools may address and requirement that schools implement procedures that favor the accused would preempt state laws that currently mandate schools to address a wider range of sexual misconduct on campus and to implement procedures in disciplinary proceedings that place the complainant and accused on equal footing. As a result, the Proposed Rule serves to not only prohibit schools from using Title IX to address many complaints of sexual misconduct but also guarantees that state laws protecting students from campus sexual violence cannot be enforced.
Taken together, these provisions, if enacted, will fundamentally impair the rights of survivors in favor of protecting the accused. On its face, the Proposal seeks primarily to protect the reputation and interests of the accused—by shielding a broad range of sexual misconduct from the reach of Title IX, all but guaranteeing that the accused prevail in Title IX proceedings, and preempting state laws that provide protections to survivors. What is clearly not of concern in the Proposal is the growing epidemic of sexual violence on campus. The Proposed Rule also ignores the long-lasting, pernicious effects of sexual violence on student survivors: survivors commonly struggle with depression, posttraumatic stress disorder, and anxiety attacks, and frequently face trauma-induced educational problems, such as declines in academic performance, loss of scholarship funds, delayed degree completion, and transferring schools.
The Proposed Rule—and its slavish protection of the interests of the accused—is premised on a myth that men on campus are the victims of a wave of false reports filed by women. The data disproves this myth. Studies of false reporting of sexual assault cases generally place the rate between 2% and 10%. The reality is that there is an epidemic of sexual violence on campus and incidents of sexual misconduct in schools are widely under-reported. If enacted, the Proposed Rule would allow this very real epidemic to worsen, putting even more women on campus at risk of being sexually assaulted, and would undermine the abilities of schools to take effective action to address sexual violence on campus and hold perpetrators accountable. Sanctuary urges the Department to withdraw the Proposed Rule in its entirety.
 The Proposed Rule refers to “sexual harassment,” which it defines as “an employee of the [school] conditioning the provision of an aid, benefit, or service of the recipient on an individual’s participation in unwelcome sexual conduct; or unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to the [school’s] education program or activity; or sexual assault.” Because the Proposed Rule’s definition of “sexual harassment” also includes sexual assault, Sanctuary will use the term “sexual misconduct” in these comments to encompass both sexual harassment and sexual assault.